UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
6.2 Undermining the Privilege Over Communications Exempt From Discovery A party to English legal proceedings can withhold “privileged” documents. In broad terms (and specific advice should be sought in respect of both of these), the two main forms of privilege arise in relation to: • communications between a lawyer and their client for the purpose of giving or receiving legal advice (“legal advice privilege”); and • communications between a lawyer, their client and/or a third party for the dominant purpose of conducting legal proceedings, including criminal proceedings (“litigation privilege”). Importantly, privilege will not exist where communica - tions are made for the purpose of allowing or assist - ing a party to commit a crime or fraud. This has been described as the “crime-fraud” or “iniquity” exception. For this exception to apply, the court must determine that, on the balance of probabilities, there is a strong prima facie case of fraud (rather than actual proof of fraud). The exception applies to both legal advice privilege and litigation privilege. It exists whether or not the lawyer involved in the communications knows of the wrongful purpose. 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages Remedies in English law are typically focused on either compensating the wronged party or disgorging any gains that have been obtained by another party in unjust circumstances. As a consequence, the courts are slow to award damages that are purely punitive/ exemplary. However, it is now well established in English law that punitive damages are available where a wrong has been committed wilfully and/or dishonestly and where the conduct was motivated by the pursuit of profit (such as in instances of fraud). This allows a victim of such wrongdoing to claim more than they have lost. It is important to note that the approach to punitive damages continues to be “proportionate and princi -
Finally, the common law regime is somewhat of a catch-all for those jurisdictions (or discrete judgments) for which no other method is available. For example, it is the only option for enforcing judgments from US or Chinese courts. However, there are a number of requirements for a judgment to be within the scope of the common law regime. This includes that the foreign court must have had jurisdiction on a territorial or con - sensual basis, and the judgment must be on the mer - its for a debt or definite sum of money and be final and conclusive. Notably, the common law process does not actually make the foreign judgment enforceable in England; rather it is regarded as creating a debt, and the English court will then give an English judgment on that debt which can be executed. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination English law provides that a party may refuse to pro - duce material or information that would otherwise be disclosable, if doing so will incriminate them in crimi - nal proceedings or expose them to a penalty in Eng - land and Wales. This right will also be relevant in cases involving a search and seizure order (as discussed in 2.2 Preserving Evidence ) in that the defendant must be informed of their privilege against self-incrimination before the premises are entered. In the context of fraud, there are noteworthy limits on the right to privilege against self-incrimination. First, Section 13 of the Fraud Act 2006 disapplies the privilege in relation to criminal fraud and the related offences (including bribery) under that Act. Secondly, the English courts have taken a limited reading of the privilege in respect of pre-existing evidence obtained through a search order that does not require the defendant to testify to its existence. In such cases, it has been held that the evidence obtained may be regarded as being able to “speak for itself” and so does not create the risk that the defendant will be coaxed into making a false statement.
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